President Donald Trump's personal lawyer Michael Cohen is pictured arriving back at his hotel in the Manhattan borough of New York City, New York, U.S., April 10, 2018.

Success is oft-times measured by fame and fortune. It's no different for an attorney. What attorney does not want to be mic'd up ready for prime-time? What attorney does not want to be on the front page of the New York Times? What attorney does not want to walk out of the courtroom to a fist-full of microphones?

In order for that to happen, the attorney needs a client. Often a high-profile, high paying client. It's a symbiotic relationship. You can't have one without the other. But when does the relationship take the attorney from the penthouse to the big house? It's when the attorney develops a case of "no-itis –" the inability to say "no."

An attorney is not above the law

An attorney is supposed to be a zealous advocate for his client. An attorney is supposed to seek the objectives sought by the client. And an attorney is to do no harm to a client (perhaps that's why our degree is a Juris Doctorate). But an attorney is not above the law. And an attorney is bound by rules of ethics. We have our own rulebook. That rulebook is designed to be a roadmap for what an attorney can and cannot do. It is a guide to where the line is. Cross it and be damned.

The rulebook defines the attorney-client relationship and that most solemn of promises – the attorney's promise to be loyal to the client and to protect the client's confidences and secrets. That means there has to be an attorney-client relationship.

And therefore no privilege. Mr. Cohen can be asked about the payment because the client didn't know about it.

The rules say that the attorney is supposed to advance the client's objectives, which means the client has to give the instructions – the guidance. If Mr. Cohen acts without Mr. Trump's knowledge, then Mr. Cohen is not advancing the client's objectives and the rule has been broken. If Mr. Cohen goes ahead and settles a case and pays the money for the settlement without Mr. Trump knowing about it, he has not followed the client's directives. The rule has been broken.

The rulebook says that the communications between an attorney and his client are supposed to be confidential. So, if someone else is present for the conversation who is not an attorney or has not been engaged by the attorney to help the client legally, then the privilege is destroyed. And apparently, if Mr. Trump was not present for any of the conversations, how can they be privileged in the first place?

Shielding a client from the law

The rulebook says that an attorney can never, ever help a client to commit a crime. An attorney cannot act as a nominee for the client in furtherance of a crime – to shield the client. The attorney can't "take one for the team" thinking that because the attorney is acting in his capacity as an attorney, that's it's not a crime.

Attorneys don't have automatic immunity – and no, it's not just a rulebook violation. If Mr. Cohen wanted to shield Mr. Trump from knowing that campaign finance laws were being broken with this payment, then Mr. Cohen will be hard-pressed to avoid a criminal conviction, as he is as guilty as if Mr. Trump knew as Mr. Cohen is an aider, and abetter and a co-conspirator.

There is also conscious avoidance – Mr. Trump cannot close his eyes to the high probability that this payment is being made and campaign finance laws are being broken. Conscious avoidance allows the government to prove knowledge through the purposely closed eyes of the defendant.

The attorney can't have money pass through the attorney or the attorney's account – even the escrow account as a conduit or as a curtain. The attorney can't take care of a payment and not tell the client in order to protect the client from harm, without harming himself (the attorney).

If the client seeks to use the attorney's license to commit a crime, then any communications between the attorney and the client are no longer privileged. If the client needs the attorney to run money through the client, and the purpose of that is to circumvent the law, then those discussions are not privileged.

Crime fraud exception

If Mr. trump and Mr. Cohen did discuss this payment, those communications are not privileged. It's called the "crime fraud exception" and it's exactly what it sounds like – an exception to the otherwise sacrosanct attorney-client privilege.

Break the rules? On the attorney's best day the attorney may not be an attorney any longer. On the attorney's worst day? A search warrant executed on Mr. Cohen's residence and office – a search warrant that is signed by a Judge based upon evidence provided by the government showing that it is more likely than not that a crime was committed.

A search warrant filed by the U.S. Attorney for the Southern District of New York – not by Robert Mueller. A search warrant that requires special Department of Justice rules to be followed because it involves an attorney.

Since a search warrant comes from a Judge determining that it is more likely than not that a crime was committed, only a fool would close his eyes to the high probability that criminal charges are not far behind.

Commentary by Randy Zelin, a leading trial attorney and former assistant district attorney with almost thirty years of experience. Follow him on Twitter @
RandyZelinNews.‏

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